In re Mary E. Griffin Revocable Trust, Michigan Supreme Court Order, #138281, 6/3/09
Return to Probate Review MenuThe Michigan Supreme Court summarily reversed the Court of Appeals in this case for the reasons stated in the Court of Appeals dissenting opinion. The case was remanded to the trial court for entry of an order granting the Trustee’s Petition to Enforce Terror Clause.
In this case, the probate court had ruled that no-contest clauses were unenforceable in trusts since the Legislature had provided for such clauses in wills in MCL 700.2518, but not in trusts. MCL 700.2518 provides that a no-contest clause in a will is unenforceable if there is probable cause to challenge the will. The Court of Appeals majority had opined that legal authorities agreed that the same test should apply to no-contest clauses in wills and trusts. Therefore, even though MCL 700.2518 specifically only applied to wills, they concluded that MCL 700.2518 reflected this state’s policy that no-contest clauses in trusts are unenforceable if there is probable cause for challenging the trust.
The Court of Appeals dissent, which got it right, pointed out that the majority’s conclusion effectively reads into MCL 700.2518 a category of legal instruments in which a no-contest provision may be unenforceable. This is an unwarranted judicial expansion of MCL 700.2518. The best evidence that the Legislature did not intend to allow challenges to a no-contest clause within a trust is that MCL 700.2518 plainly expresses an intent to allow challenges to a no-contest clause within a will. Had the Legislature intended to allow challenges to a no-contest clause within a trust, they could have done so.
Both the trial court and the Court of Appeals majority were substituting what they believed the Legislature intended for what was actually said. By doing so, they were creating policy which should be left to the Legislature. While I believe MCL 700.2518 may be good policy for trusts, it is better for the Legislature to proclaim such public policy. This issue is covered by the proposed Michigan Trust Code which should be shortly adopted. It would extend MCL 700.2518 to trusts and do so in a proper fashion.
A more complete recent summary of the Court of Appeals decision in this case may be found on the Calhoun County Courts website at: http://courts.co.calhoun.mi.us/ca120208.htm .
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Last updated 6-3-09
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